Southern California Freight Lines v. McKeown

• Citation: 148 F.2d 890
• Decision Date: 22 May 1945
• Docket Number: No. 10873.,10873.
• Parties: SOUTHERN CALIFORNIA FREIGHT LINES v. McKEOWN.
• Court: U.S. Court of Appeals — Ninth Circuit

148 F.2d 890 (1945)

SOUTHERN CALIFORNIA FREIGHT LINES v. McKEOWN.

No. 10873.

Circuit Court of Appeals, Ninth Circuit.

April 21, 1945.

Rehearing Denied May 22, 1945.

H. J. Bischoff, of San Diego, Cal., for appellant.

A. F. Baughn, of Los Angeles, Cal., for appellee.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment of the district court holding appellant liable to appellee for additional compensation for appellee's services to appellant because the appellee was an employee engaged in interstate commerce within sections 3(b) and 7 (a) of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. hereinafter called the Act, providing

Sec. 3 "As used in this Act — * * *

"(b) `Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof."

Sec. 7 (a) "No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce."

Appellant is engaged in the transportation of goods from Los Angeles to places in Southern California and in the nearby states in a large fleet of trucks requiring between 50 and 60 men on their freight docks to handle the goods transported. The facts show a substantial enterprise.

Appellee was engaged "in the commerce" of appellant both interstate and intrastate. The district court found appellee's employment, like that of the rate clerk in Overnight Motor Transportation Co. v. Missell, 316 U.S. 572, 574, 62 S.Ct. 1216, 86 L.Ed. 1682, consisted in clerical work in blocking and routing bills of lading, the segregation of invoices of freight, checking items of freight against bills of lading and keeping of time of employment of the freight handlers, and occasionally assisting in sorting cargo into the freight bins.

As to the amount of appellee's such employment in interstate commerce it is stipulated that it was to the "extent of 7% of the plaintiff's appellee's total activities" and that it was continuous "during each and every day of each and every week in his said employment."

Appellant contends that 7% of appellee's time spent in interstate commerce is so unsubstantial an amount that appellee was not engaged in interstate commerce at all within the meaning of the Act. It relies on the language of Walling v. Jacksonville Paper Co., 317 U.S. 564, 572, 63 S.Ct. 332, 337, 87 L.Ed. 460, that "If a substantial part of an employee's activities related to goods whose movement in the channels of interstate commerce was established by the test we have described, he is covered by the Act."

This statement throws no light on what percentage of an employee's time in interstate commerce is unsubstantial. Since the Act is concerned with wages and hours, it is apparent that if there had been a cut of 7% in the employee's pay check it would not be regarded as unsubstantial or de minimis by any laborer or his union. Nor would a...